The New Nation - Internet Edition

Children criminalised by society

MORE and more British children are being 'unjustly criminalised by a punitive justice system' as public perception hardens against them, AFP reported from London recently. A joint report from the Children's Commissioners in England, Scotland, Wales and Northern Ireland warned that children are being denied basic rights while increasing numbers of youngsters are suffering mental health problems as they 'resort to alcohol and drugs'. According to experts, though crime committed by children fell between 2002 and 2006, the numbers prosecuted had risen by just over a quarter. The system does not sufficiently distinguish between adult offenders and children who break the law, the report says adding 'Too many children are being criminalised and brought into the youth justice system at an increasing young age.'

Compared to other countries in Europe, England has a very low age of criminal responsibility and large numbers of children are locked up. The study also indicates that there are now one million children under 16 who are obese in the United Kingdom, most of them from poor families who cannot afford a healthy diet and do not have access to parks or leisure centres. It criticised measures such as Anti-Social Behaviour Orders which 'name and shame' young offenders, and slammed as 'discriminatory' the use of devices such as the Mosquito, a gadget which emits a high-pitched noise audible only to people under 25. The British children affairs minister has said that the government has taken the issues seriously with a view to helping families and communities to give their children 'a happy childhood.' A recently carried out research shows that young people are more likely to have been victimised. Britain is struggling to get to grips with a surge of fatal knife attacks, which analysts say, reflects a growing sense of insecurity on the country's streets.

Waste management in the city

THE Japan International Cooperation Agency (JICA) and the Dhaka City Corporation (DCC) held a joint seminar some time ago on solid waste management. Its aim was to build awareness about the participatory aspects of proper management of wastes. Meanwhile, many people are found to be careless and littering the roads with wastes instead of putting them inside dustbins. The DCC again is rather uncaring in habituating the people with these orderly practices. Thus, there is a lot that the DCC ought to be doing to make the citizens aware of their responsibilities for safe waste disposal.

As for the large scale disposal of the waste, the mode of dumping wastes at landfills-- some of which are near residential areas -- is most undesirable to say the least. JICA offered help to DCC to set up a modern solid waste management system for the city that would include also recycling of wastes. The JICA proposal envisages comprehensive waste collection and recycling activities. The kitchen wastes would be treated and turned into composts, wastes in the form of tin cans would be recycled and turned into tin sheets and all kinds of broken and useless glasses into glass sheets.

Even large quantities of the wastes from organic sources can be burnt to produce notable amount of electricity to be supplied to the city. At the completion of the project, the poorly managed and polluting landfills would give way to much cleaner processes that would lead to transformation of wastes into products of economic value. Management of hospital wastes is another matter but a serious issue from the environmental and health perspectives of the people. Such health hazarding wastes are burnt in incinerators to prevent their indiscriminate throwing into dustbins.

Why fasting is obligatory for the believers of the faith

Mr. Tamizul Haque

Barrister-at-Law

Fasting was made obligatory for Muslims in the second year after the Hijrah, i.e. the Holy Prophet's (S.M.) migration from Makkah to Madina (which was to become the start of the Islamic lunar calendar). Thus, the obligation of fasting was decreed shortly before the ordinance of Jihad, or striving for Allah's cause. As a new duty, fasting was at first hard for the Muslims to observe. Those who found it too strenuous were, therefore, given a concession, requiring them instead to feed one needy person for every day of fasting they miss. A general recommendation to feed the needy is then made, either as a voluntary act in itself or by feeding more than the minimum number of needy people in lieu of fasting. "He who does good of his own account does himself good thereby." (Verse 184) This is followed by the recommendation that, apart from cases of illness or travel, fasting would be more beneficial and preferable despite the hardship or discomfort it might cause: "For to fast is to do good to yourselves, if you only knew it." (Verse 184) There is here an obvious element of education and training of will-power to enable Muslims to make the effort to fast. This also highlights the health benefits of fasting, in spite of the strain, all of which are important factors in the Islamic self-education process.

These recommendations were a step towards the withdrawal of the exemption for non-traveling healthy people and making fasting in the month of Holy Ramadan obligatory, as given in verse 185. The concession remained valid for elderly people who find fasting in Ramadan too strenuous and are not expected to be able to fast at a later date.

Imam Malik reports that Anas Ibn Malik, a Companion of the Holy Prophet Muhammad, lived to a very advanced age and was not able to keep the fast. He used to compensate by feeding poor people instead, Abdullah ibn 'Abbas, a cousin and learned Companion of the Holy Prophet, was of the opinion that the exemption has not been completely abrogated by the ruling of verse 185; it remains applicable to the elderly who are not able to keep the fast.

Ibn Abi Layla, a prominent scholar, says that he visited Ata one day in the Holy month of Ramadan and found him eating, Ata told me that, according to Ibn Abbas, the ruling of verse 185 superseded that of the one before it with respect to healthy non-traveling people, but the elderly were free not to fast if they fed instead one needy person for every day.

Fasting was made more appealing due to the fact that it is observed in Ramadan, the month in which the Holy Quran was revealed. This could be a reference to the fact that it was first revealed during Ramadan, or that most of it was revealed in it. It is a significant distinction since the Holy Quran is the definitive and timeless Book of the Muslim Community, its guiding light, the source of its strength and security, from which it has drawn all the enduring qualities and elements that have made it great. Without the gifts that the Holy Quran has given the Muslim Community, it would have become forgotten history long ago. As a token of gratitude to Allah almighty, Muslims observe the fast in the Holy Month of Ramadan during which the Holy Quran was revealed.

This verse establishes fasting in Ramadan as obligatory for all healthy non-traveling Muslims, with no concessions except for the elderly, as pointed out above. Whoever of you is present in that month shall fast throughout the whole month. It has thus become binding on all Muslims who either see the new moon of the lunar month of Ramadan themselves or learn of it by any other reliable means, to observe the fast in the Holy month of Ramadan but as this is a general order applicable to all, a reiteration of the concession given in special cases immediately follows: "But he who is ill or on a journey shall fast instead the same number of days later on."

The surah gives the Muslims yet another incentive to keep the fast: "Allah desires that you have ease. He does not desire that you be afflicted with hardship." (Verse 185) This statement encapsulates the fundamental principle on which all Islamic religious duties are founded. They are intended to be easy, not arduous. This indicates a generous and realistic outlook on life as a whole. It instills in the Muslim heart a tolerant, easy and agreeable attitude. Religious and social activities and responsibilities are discharged with ease, confidence and assurance, in the happy knowledge that Allah's purpose is to enable man to go through life with the minimum of hardship or discomfort.

To complete a whole month, sick people or those who travel in Ramadan and avail themselves of the special concession are required to make up for days missed by fasting an equal number of days at a later date in the year. You are, however, required to complete the necessary number of days (Verse 185)

Fasting is an occasion to celebrate Allah's Guidance, Glory and Grace. Hence the requirement "to extol and Glorify Allah for having guided you aright and to tender your thanks. "(Verse 185) It is a time during which believers can feel and appreciate Allah's favours and reciprocate with thanks, submission and gratitude. In so doing, Muslims cultivate the precious and vital quality of Taqwa, or Allah-fearing a main objective of fasting.

Thus we can see how evident Allah's grace is in the imposition of the duty of fasting which, on the face of it, seems hard and demanding. We can clearly see its educational and disciplinary benefits for a nation being prepared for the leadership of mankind, guided by a genuine fear of Allah, keen sense of accountability, and a vigorous conscience.

In Ayat 186 which speaks thus:

These verses 186 and 188 are not foreign to the subject of Ramadan, but emphasize its spiritual aspect. Here we are told of Prayer and the nearness of Allah, and in 188 we are asked not to "eat up" other people's substance.

In Ayat 187 which speaks thus:-

Men and women are each other's garments i.e. they are for mutual support, mutual comfort, and mutual protection, fitting into each other as a garment fits the body. A garment also is both for show and concealment. The question of sex is always delicate to handle: here we are told that even in such matters a clear, open, and honest course is better than fraud or self-deception. The sex instinct is classed with eating and drinking, an animal thing to be restrained, but not to be ashamed of. The three things are prohibited during the fast by day, but permitted after the fast is broken at night till the next fast commences.

Interposed among the verses dealing with fasting comes a verse reflecting a profound insight into human nature. It reaches to the deepest recesses of the human psyche, offering solace and ample rewards for keeping the fast in response to Allah's Commands (Verse 186).

The Holy Prophet is also reported to have said: "Your prayers shall be answered as long as you remain patient. Do not say, 'I have prayed but my prayer has never been answered!" (Related by al-Bukhari and Muslim).

A fasting person has the best chance of his prayers being answered. Abu Dawud al-Tayalisi relates on the authority of Abdullah ibn Umar that the Holy Prophet said: "The prayer a fasting person says at the time when he is about to finish his fast shall be answered." Accordingly, Abdullah ibn Umar, a learned Companion of the Holy Prophet used to gether his family together when breaking the fast and pray.

The surah then resumes its elaboration on the rules of fasting. It points out that, in addition to food and drink, married Muslims are permitted sexual intimacy with their spouses between sunset and dawn. It gives the exact time for the fasting, which extends from dawn till sunset. It points out that during any period when people retire to a mosque for worship in Ramadan i.e. itikaf, sexual intimacy is not permitted for married people.

They are as a garment for you, as you are for them. The word used to describe the marital relationship in the Arabic original is libas, literally meaning garment. Marriage does indeed cover and protect both spouses. Islam fully takes into account man's natural drives, instincts and desires. It elevates man, treating him as one integral entity. Accordingly, Islam responds to the needs of the flesh, incorporating them into a decent and virtuous context.

Honesty at all times

Within this context of fasting and abstention from food and drink, the surah sounds another warning, this time against usurping other people's possessions. The verse refers specifically to presenting false and fraudulent evidence before a judge or an arbiter in order to obtain a favourable judgment giving one the right to appropriate someone else's property. To reinforce the sense of deterrence, the warning follows immediately after reference to the bounds set by Allah and the call for more consciousness and fear of Him.

Judges decide on prima facie evidence, and the onus of honesty is on the litigants. They are left to their own conscience.

Thus we can see how this matter is also closely linked to Taqwa, or the sense of Allah-fearing, as was just retribution and fasting before it. These rulings represent parts of a harmonious and divinely ordained way of life, firmly bound together in a common framework of maintaining the fear of Allah, or Taqwa. This makes Islam a potent and well integrated system which cannot be fragmented or disconnected, taking some parts of it and discarding others. That would be a gross transgression and a most vile offence against Allah Almighty.

HC verdict in Jail Killing case: A Lawyer's view

Barrister Md. Abdul Halim

Four of our national leaders who played the most proactive role in our independence war and also in the post-independence nation building- Syed Nazrul Islam, Tajuddin Ahmed, M. Monsur Ali and A.H.M Qamruzzaman- were brutally and cowardly killed in the Dhaka central jail on the night of November 3, 1975. The incidence popularly known as 'jail killing case' has hitherto been given more political importance than legal as no criminal case was filed in 21 years since its happening. The whole incidence of this tragic killing was covered by Indemnity Ordinance issued by the then President Khandaker Mostaque Ahmed and the state was not given any power to file a case against anyone. It was in October 1996, when the Awami League government for the first time abolished the indemnity ordinance and paved way for investigation and trial of the gruesome killing. This write up is aimed at explaining legal aspect of the investigation and trial of the case and the ultimate verdict by the High Court Division on 28th August, 2008 acquitting most of the persons charged against. Both the trial court and the apex court stated that the merit of the case has been damaged by faults in the investigation. The verdict of the apex court has given rise to some important questions among general public: (i) why are the accused persons set free given that the jail killing is a historic fact in Bangladesh; there is no doubt about it; it was a killing within the state protection and the persons who killed them or instigated or abetted the killing were in the power and the killing itself or the intrusion into the central jail was done leaving behind ample proof of it? (ii) Is it not injustice if an accused who has committed a crime is not punished and is set free?

One of the avowed purposes of the judicial system in a country is to administer justice and to see that a person who commits crime must not go unpunished and set free. However, the dispensation of impartial criminal justice and punishing offenders by the judicial system is not always something like one-way traffic; it is depended upon some important factors. The most important of these factors is the preparation and collection of evidences by the state. Our judiciary is based on common law or adversarial system as opposed to inquisitorial or civil law system.

Under the inquisitorial system the judges play an active role in collection of evidence and preparation of the case whereas in the adversary system judges have to play impartial role. In a criminal case it is the state who, on behalf of the victim and against the accused person, will collect and prepare the case and the defence will scrutinise all the evidences produced by the state with a view to developing any possible defence; and in between these two parties the court will take an impartial view and give verdict on the basis of the evidence placed and proved in open court. The general public might perceive the court as a forum of justice but the term 'justice' is not always something as ordinary people perceive; justice is to be done and served within the four corners of law and the judges themselves cannot act going beyond the law.

If faulty investigation is made in a criminal case, all the court can do in our system is to order for a fresh investigation. The courts being in an impartial position cannot dictate or interfere in the manner and form of investigation.

The genesis of impartial criminal justice lies in the sense that state will collect, produce and prove all relevant evidences on the allegation against the accused person and if the charges can be proved beyond reasonable doubt, only then the court will convict the accused; if there is a reasonable doubt in favour of the accused, the judge is duty bound to set free the accused, does not matter whether the accused is a known killer or there is a common knowledge against the allegation.

The ground works for a successful conviction under a criminal law firstly depends upon the police and investigation authorities, and secondly upon the direct testimonial evidence given by witnesses in the open court. If they either accidentally or intentionally or negligently or being persuaded by any party manipulates or violates rules with regard to investigation or prosecution or does not bring a material evidence before the court, or the witnesses do not disclose the true fact, the trial court has nothing but to acquit the accused person and it would be futile to blame judicial system.

And this is why in some countries there is a department of prosecution service which is completely free and independent of the executive organ of the government.

After a long gap of 23 years when the investigation and subsequent trial of the jail killing case was started, many drawbacks were encountered by the investigating agency and the courts: first, people who masterminded this killing destroyed vital material evidences over this long period of time; second, it is unlikely that an investigation officer would be able to perform his duty properly 23 years after the incidence; third, many of the accused persons, having political influence over the government and/or opposition, manipulated the investigation process and this is why names of some culprits were not in the charge-sheet and some wrong persons' names were inserted and this was done, I believe, with a view to casting more doubts on the merit of the case; fourth, the verdict in this case largely depended on testimonial evidence by witnesses and since most of the witnesses gave complete contradictory statements in the court except with regard to the involvement of Moslem Uddin, the prosecution version of facts got stuck on the point of 'benefit of doubt' in favour of the defence and in such a case the court including the High Court Division cannot be blamed for giving a not guilty verdict.

Before such a historic case should have been sent to the court for trial, it was incumbent upon the government to think twice whether any breakthrough in proper investigation would be possible and witnesses and evidences could be collected for a successful conviction. Pushing the case to the court for trial with faulty investigation and insufficient evidence has not only paved the way for criminals to go unpunished against a historic truth but also left the prestige of the judicial system in tater and disrepute.

One commentator questioned: "is not it common knowledge that those who were involved in tragic killings of August 15 and November 3 were given safe passage out of the country, and later many of them were given government jobs in the diplomatic service? Was it beyond the purview of the trial court and the higher judiciary to take cognizance of this fact while delivering their verdicts? 'Common knowledge' can rarely be considered by the trial court judges for the purpose of conviction in a criminal trial; a criminal conviction can never be based on surmise, conjecture or emotion; it has to be strictly based on evidence. These are facts that those who were involved in August 15 and November 3 killings were given safe passage and posts in diplomatic missions subsequently but these must have been brought either by way of material evidence or testimonial evidence before the court and the prosecution must also prove that these evidences had relevance with killing in question. However, this evidential burden was not discharged by the prosecution.

Again, the trial court cannot take cognizance of any fact in isolation of some relevant facts. This is mainly because, as I have already mentioned, the judges in our country work on adversary system as opposed to civil law system and we technically call 'law is blind'. This is because judges cannot go beyond the evidences produced and/or proved before the court.

As far the merit of the case is concerned, there is still possibility of filing an appeal to the Appellate Division. Appeal process is considered to be the continuation of the proceeding and appellate court has the power to order a fresh trial, even with a fresh investigation for the ends of justice, if prayed for by the prosecution.